Cannon v. Cannon

• Decision Date: 13 April 1885
• Citation: 17 Mo.App. 390
• Parties: ROBERT L. CANNON, Respondent, v. ELLA W. CANNON, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 390

ROBERT L. CANNON, Respondent,

v.ELLA W. CANNON, Appellant.

Kansas City Court of Appeals, Missouri.

Apr. 13, 1885.

APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, Judge.

Reversed and remanded.

The facts appear sufficiently in the opinion of the court.

A. J. ALTHOUSE, for the appellant.

I. The petition does not allege that defendant absented herself without reasonable cause.-- Freeland v. Freeland, 19 Mo. 354. Defendant was not absent one whole year. Her return is prevented by this hasty proceeding.--Sect. 2174, Rev. Stat. Mo., 1879; Gillerwater v. Gillenwater, 28 Mo. 60.

II. The statement of defendant, “that she intended to leave plaintiff, and not live with him again,” is not an indignity.-- Hooper v. Hooper, 19 Mo. 359. One or two acts of indignity are not sufficient.-- Kempf v. Kempf, 34 Mo. 211. Taking her infant child with her is not an indignity, but an act of motherly love. The other allegations are circumstances of desertion, and not indignities that render his condition intolerable. There is no averment or evidence that defendant was ever unfaithful. The presumption is that she had a reasonable cause for absenting herself, until the contrary is alleged and proved.-- Freeland v. Freeland, 19 Mo. 354.

J. F. HARWOOD, for the respondent.

This suit was brought under that subdivision of sect. 2174, Revised Statutes, 1879, relating to divorce, which reads as follows: “Or shall offer such indignities to the other as shall render his or her condition intolerable.” Webster defines “indignity” to be “unmerited, contemptuous treatment; any action towards another which manifests contempt for him.” He defines “intolerable” to be “not capable of being borne or endured; not proper or right to be allowed.” Both these conditions are alleged and shown to have been fulfilled in their most extreme sense and in the most outrageous manner. There are no cases parallel to it in the books.

II. Since the above was submitted he finds this holding: “Any unjustifiable conduct on the part of the husband, which so grievously wounds the mental feelings of the wife, or so utterly destroys her peace of mind as to seriously impair her bodily health, or endanger her life, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty, although no physical violence is inflicted or even threatened.”-- Carpenter v. Carpenter, 30 Kansas 71; Avery v. Avery, same court, January 7, 1885; Cent. L. J., March 6, 1885. We invoke the same principle in favor of the husband in this case.

Opinion by HALL, J.

This is a suit for divorce. The petition states in substance:

1st. That plaintiff and defendant were married January 1st, 1878.

2d. That they lived together as husband and wife until December 23d, 1881.

3d. That plaintiff faithfully demeaned himself, etc.

4th. That defendant, wholly disregarding her duties as the wife of plaintiff, has offered to plaintiff such indignities, and so disgraced him, as to render his condition intolerable in this, to wit: that on or about the 23d day of December, 1881, defendant left his place of abode, which was a comfortable home in Cameron, county and state aforesaid, and unknown to plaintiff, took away nearly all his bedding, all his money, tableware, and also his infant child, aged two years, and named Charles Foster Cannon, together with many other articles of property, and secretly and unknown to the plaintiff, abandoned him, and as he believes and is informed, has left the state of Missouri. That before such date defendant had declared she would leave the plaintiff and never live with him again.

This petition was filed with the clerk of the circuit court on the 21st day of January, 1882. To this petition the defendant demurred for the reasons:

“That one year had not elapsed from the date of said desertion of defendant until the institution of this suit; and that the petition does not contain allegations sufficient to constitute a cause of action.”

This demurrer was overruled. The defendant stood upon her demurrer. The court heard evidence in support of the allegations of the petition, and found for plaintiff, decreeing him a divorce from defendant. The defendant has brought the case here by appeal.

The single question presented by the record is the sufficiency of the petition. The plaintiff, in his brief, states that the petition is founded upon that subdivision of sect. 2174, Revised Statutes, which reads as follows: “Or shall offer such indignities to the other as shall render his or her condition intolerable;” and plaintiff admits that unless the petition states a good cause of action, within the meaning of the above quoted subdivision, the demurrer should have been sustained. The...